2011718 (Migration)

[2021] AATA 4161

2011718 (Migration) [2021] AATA 4161 (30 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2011718

MEMBER:Nathan Goetz

DATE:30 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 30 July 2021 at 4:34pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – acceptable departure arrangements – absence of a Bangladesh passport – disruption to global travel due to the COVID pandemic – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 73, 195A
Migration Regulations 1994 (Cth), r 2.20; Schedule 2, cl 050.211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Bridging E (Class WE) visa under s 73 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in the review application by registered migration agent [number] [Mr A].

   IDENTITY, MIGRATION HISTORY AND CHRONOLOGY

3. The applicant identifies as a [age]-year-old male citizen of Bangladesh. The applicant arrived in Australia [in] May 2013 by boat as an irregular maritime arrival.

4. On 10 July 2013 the applicant was granted a bridging visa. On 13 August 2013 the applicant applied for a protection visa.

5. On 4 September 2013 the bridging visa granted on 10 July 2013 ceased. On 5 September 2013 the applicant was granted a bridging visa.

6. On 31 October 2014 a delegate refused to grant the applicant a protection visa. On 6 November 2014 the applicant applied to the Tribunal for a review of the protection visa refusal decision.

7. On 29 June 2016 the Tribunal affirmed the decision to refuse the applicant a protection visa.

8. [In] July 2016 the applicant to the Federal Circuit Court for judicial review of the Tribunal decision.

9. On 5 August 2016 the bridging visa granted on 5 September 2013 ceased. The applicant became an unlawful non-citizen.

10. [In] February 2017 the Federal Circuit Court dismissed the judicial review.

11. [In] February 2017 the applicant appealed to the Federal Court against the decision of the Federal Circuit Court. [In] August 2017 the Federal Court dismissed the appeal.

12. On 15 June 2020 the applicant applied for the bridging visa that is the subject of this Decision Record. At that time Class WE contained two subclasses: Subclasses 050 and 051.

13. On 25 June 2020 the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl.050.211(2) and did not satisfy cl.051.211.

14. On 15 July 2020 the applicant applied to the Tribunal for review of the refusal decision.

15. On 9 July 2021 the applicant was invited to appear at a Tribunal hearing commencing at 10:00am on 30 July 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to a Tribunal hearing because it had considered the information it had and was unable to make a decision favourable to the applicant. The Tribunal was satisfied that a telephone hearing was appropriate in all the circumstances.

16. On 30 July 2021 the applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Bengali languages.

    CRITERIA FOR THE BRIDGING VISA

17. Clause 050.211 is met if, at the time the applicant applied for the bridging visa:

    (1)the applicant was an unlawful non-citizen, or the holder of a Bridging E (Class WE) visa, or the holder of a Subclass 041 (Bridging (Non-applicant)) visa; and

    (2)the applicant was not an eligible non-citizen of the kind set out in reg 2.20(7), (8), (9), (10), (11) or (17).

18. Clause 051.211 is met if, at the time the applicant applied for the bridging visa, the applicant is an eligible non-citizen referred to in subregulation 2.20(7), (8), (9), (10) or (11).

19. The applicant is required to continue to satisfy the above clauses at the time a decision is made.

    CONSIDERATION OF THE CLAIMS

    Bridging visa application form

20. According to the applicant’s bridging visa application form, he seeks the bridging visa on the basis that he is departing Australia. However, he wrote that he was not arranging to depart Australia because he did not have travel permission to depart Australia. He needed work rights to arrange funds to depart Australia.

    Discussion at Tribunal hearing

21. The applicant confirmed his present residential address. That is the same address contained in the review application form. He had lived at this address for approximately four years.

22. The Tribunal noted that it wrote to the applicant on 14 July 2021 and noted that the delegate refused to grant the bridging visa on the basis that the applicant did not satisfy cl.051.211(2) and cl.051.211. The letter invited the applicant to provide a submission addressing how he met that criteria by 4pm on 23 July 2021. The applicant did not respond to this request. The Tribunal asked the applicant whether the reason he did not respond was because he conceded that he did not meet the criteria. The applicant said no. Given this, the Tribunal asked how the applicant met the criteria. The applicant said he did not have a visa and did not want to stay in Australia illegally, so he applied for review of the refusal decision.

23. The Tribunal asked the applicant about how the delegate decision concerning cl.050.211(2) and cl.051.211 was wrong. The applicant said he did not understand or read English. The Tribunal noted that the applicant had a migration agent who lodged the review application on behalf of the applicant and the migration agent was still acting on his behalf as no form had been filed requesting a change of contact details concerning his authorised recipient. The Tribunal indicated that it struggled to accept that the applicant did not understand what the issue was being considered by the Tribunal. The applicant said that he paid his migration agent to make the review application but the migration agent was not working for him anymore as the applicant could not pay his fee. At the end of the Tribunal hearing, the Tribunal advised the applicant that any change to his contact information needed to be filed with the department and the Tribunal.

24. The applicant confirmed that he was born in [year] and he was [age] or [age] years of age. He did not hold a current Bangladesh passport. The Tribunal noted the Australian Government Smart Traveller Advice concerning Bangladesh[1] that due to the COVID pandemic there have been significant disruptions to global travel which may make it difficult to travel to Bangladesh at the moment. The applicant agreed with this assessment. The Tribunal asked the applicant whether it was reasonably practicable to remove him from Australia to Bangladesh at the moment. The applicant said that he was not aware of what the Bangladesh Government would do about him. He again said that if it was possible for him to return to Bangladesh he would not of stayed here illegally where cannot work.

    [1] Bangladesh Travel Advice & Safety | Smartraveller

25. The applicant confirmed that he had no ongoing visa applications or matters tied up in the courts other than the review application that was presently being considered by the Tribunal.

26. The Tribunal noted to the applicant that he applied for the bridging visa on the basis that he was departing Australia and asked whether that was correct. The applicant said ‘not really.’ The applicant asked rhetorically why he would stay in Australia illegally for such a long time if it was possible for him to return to Bangladesh. The Tribunal was perplexed by this, given that he applied for the bridging visa on the basis that he was making arrangements to depart Australia and indicated its concern about this. The applicant said that he applied for the bridging visa so he could stay in Australia legally, He noted that he did not have a Medicare card and asked how he could remain in Australia illegally. The Tribunal asked the applicant whether it was correct that he was not applying for a bridging visa on the basis that he was going to depart Australia. The applicant said this was correct. Noting that the applicant applied for the bridging visa on the basis that he was making arrangements to depart Australia, and now the applicant was telling the Tribunal that he was not making arrangements to depart Australia, it may suggest to the Tribunal that the applicant was prepared to say anything to achieve a favourable migration outcome. The applicant responded that he may have written that in the review application form, but the present situation meant that he cannot return to Bangladesh because of the COVID pandemic.

27. The Tribunal asked the applicant whether there was anything else he wanted to say in support of the criteria for the bridging visa. The applicant responded if it was possible for him to return to Bangladesh, he would not have stayed in Australia for such a long time illegally with no work and being required to borrow money from friends to meet living expenses. The applicant said he was not sure how this was relevant to the granting of the bridging visa, because he did not know what the conditions were for granting the bridging visa. He just wanted to explain his problems.

    FINDINGS AND REASONS

28. The issue in this case is whether the applicant meets cl.050.211 or cl.051.211.

29. While the Tribunal may have concerns about whether the applicant meets cl.050.212, ultimately the visa was refused on the basis that the applicant did not meet cl.050.211 or cl.051.211 and it is preferrable for the Tribunal to confine itself to this criteria.

30. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

    Clause 050.211

31. The applicant meets cl.050.211(1) on the basis that he was, and remains, an unlawful non-citizen. However, the applicant fails to meet cl.050.211(2) because he is an eligible non-citizen of a kind set out in subregulation 2.20(7), (8), (9), (10), (11) or (17).

32. This is because the applicant is captured by subregulation 2.20(17). Subregulation 2.20(17) provides that the applicant meets that subregulation if the applicant is an unlawful non-citizen (which he is), that s.195A of the Act is not available to the Minister in relation to the grant of a visa (which it is not, because s.195A of the Act is only available if the applicant is in immigration detention), and the absence of a Bangladesh passport, coupled with the disruption to global travel due to the COVID pandemic, means that it would not be reasonable practicable for the applicant to be removed from Australia to Bangladesh at this time.

33. Therefore, the applicant does not satisfy cl.050.211(2). He therefore does not satisfy cl.050.211.

    Clause 051.211

34. The Tribunal is not satisfied that the applicant is an eligible non-citizen of a kind provided in sub regulation 2.20(7), (8), (9), (10) or (11) for the following reasons.

35. In relation to 2.20(7), it is required that the applicant has not turned 18 years of age. In relation to 2.20(8), it is required that the applicant to have turned 75 years of age. In relation to 2.20(9) and (10), the Minister has not applied for judicial review of a decision concerning any of the type of visas provided in those subregulations. In relation to 2.20(11), it is required that the applicant be a member of the same family unit to whom 2.20(10) applies.

36. Noting the applicant’s age, it could not be argued that at the time he applied for the bridging visa he was under 18 years of age, had or had turned 75 years of age. The migration history demonstrates that the Minister has not applied for judicial review of any decision made in respective of any substantive visa. The applicant has not demonstrated that he is a member of the same family unit of any person who satisfies 2.20(10).

37. Therefore, the applicant does not satisfy cl.051.211.

    CONCLUSION

38. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

39. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 051 (Bridging (Protection Visa Applicant)) visa.

    DECISION

40. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Nathan Goetz
    Member